23 La. Ann. 281 | La. | 1871
Freeborn Gr. Bartlett and the plaintiff, on the eighteenth of February, 1868, entered into a contract, the substance of which is as follows: Bartlett acknowledged to owe Carter $8008, and declared, “ that for the purpose of securing unto the said Carter the said sum of money, I do hereby sell the undivided three-fourths part of my plantation,” etc., describing the premises, and adds, “which sale I hereby make for and in consideration of said indebtedness to said Carter. In evidence of which indebtedness I this day furnish three promissory notes, each for $2669 43, dated this day and payable in one, two and three years after date, with eight per cent, per annum interest from maturity. Said notes are made payable to said Carter, and are not negotiable, and are also subject to all the stipulations contained in this act.” The act then recites: “ It is hereby agreed by and between the parties that in case' the said Bartlett shall well and truly pay unto said Carter the said notes, according to tlieit tenor, then he shall he entitled to the redemption of the property which he does hereby convey, and by absolute right, by reason of the payment of the notes.”
It is then agreed that if the first note is not paid at its maturity, the right of redemption ceases if Carter so elects, and he takes the prop- . erty as absolute owner. If, however, he should not so determine, the payment of the first note is thereby postponed to the maturity of the second note, when he lias the same option; but in this ease Bartlett •lias priority of choice, for it is one of the express stipulations that he also has tho right at the end of the second year to terminate the right of redemption, and render Carter perfect owner of the property, “in case he should find at the end of two years that he can not pay said notes.” It is clearly expressed that a failure to pay the notes was to operate a loss of the right of redemption, Carter taking in full ownership the property and restoring the notes to the maker of them, whose indebtedness became extinct. In the event the right of redemption should lapse by neither party taking action in regard to it, an amicable partition in kind was to take place between the parties. During the term agreed upon for the payment of the debt, Bartlett was to remain
In the month of July following, about five months after this contract ■ was entered into, Bartlett died. The present defendant, Williams, became his administrator. An inventory was made, and the land, plantation, stock, etc., were entered upon it as belonging in undivided ownership to Bartlett and Carter, an undivided fourth part only of the ■entire property being treated as belonging to the succession of Bartlett. On the seventh of May, 1869, the administrator filed a provisional ■account of his administration and a schedule of the debts of the estate, but the notes held by Carter for the $8008 owing to him under the ■contract referred to were not mentioned among the debts. An opposition was filed on the part of Carter to the administrator’s accoun t. It is alleged in this opposition that Carter is a creditor of the succession in the sum of $8003, evidenced by the three notes we have already ■described, which, it is alleged, are secured by mortgage by the act of •eighteenth February, 1868, the one just recited.
These proceedings were first instituted in the parish court o£ Natchitoches, and a judgment was rendered in that court rejecting the ■opponent’s claim. An appeal was taken to this court at the term at Natchitoches for August, 1869, and dismissed for want of jurisdiction in the parish court. The controversy was subsequently renewed in the district court, where it was concluded iu January, 1871, by the rendition of a judgment in favor of the plaintiff and opponent, recognizing the act of eighteenth February, 1808, as a mortgage to secure the payment of the notes therein specified, and ordering their payment in due course of administration. From this judgment of the ■district court the administrator has appealed.
The character of the instrument forming the basis of this litigation, .and the intention of the parties in executing it, are the principal inquiries in this case. A mortgage is a secondary obligation entered into to secure the performance of a principal or primary obligation. Is the act under consideration a secondary obligation 9 If secondary, what is the principal obligation? Can the notes be so considered? They are not negotiable, and were expressly made so. They are, moreover, expressly subordinated to the stipulations of the written act. The language of the written agreement is: "Said notes being payable to said Carter and are not negotiable, and are also subject to all the stipulations contained in this act.’’ It is not declared that the property mentioned is mortgaged to secure the payment of these notes.
We do not see the force of this reasoning. It is shown that the administrator has throughout disclaimed all right of the succession of Bartlett to three-fourths of the property in question, and that he has-constantly resisted the claim set up by the plaintiff upon the notes. There is, therefore, now no remaining right of redemption or will to, exercise that right if it remained.
It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further ordered that the opposition to the administrator’s account by the-plaintiff be overruled and dismissed; that the notes upon which the opposition is founded be canceled and annulled, aud that the adiuintrator’s account, so far as relates to the opposition of the plaintiff, be approved and homologated, the plaintiff paying costs in both courts.
Rehearing refused.